The defendant New York City Transit Authority (the "TA") has moved under Rule 56, Fed. R. Civ. P., to dismiss the complaint of plaintiff pro se Kenneth L. Stewart ("Stewart" or the "Plaintiff") alleging that the TA has violated the Americans with Disabilities Act of 1990, 42 U.S.C. § 12101, et seq. ("ADA"). For the reasons set forth below, the motion is granted in part and denied in part.

Prior Proceedings

Stewart commenced this litigation on January 14, 2004, by filing his complaint which alleged that he is legally blind and that his ADA rights have been violated because TA's bus operators ("BOs") do not always comply with ADA bus stop announcement requirements. (See Complaint ¶¶ 1, 3, 6). He seeks injunctive relief (Complaint ¶¶ 23-31), class relief (Complaint ¶¶ 34-35), and damages for himself (Complaint ¶ 32) and for an organization called the Metropolitan Council of Low Vision Individuals (Complaint ¶ 33).

Discovery has proceeded. The instant motion was marked submitted on September 21, 2005.

The Facts

The facts are set forth in the TA's Statement of Uncontroverted Material Facts Pursuant to Local Rule 56.1, and have not been controverted by Stewart in any significant detail although he has submitted certain additional facts as noted below.

Stewart is legally blind and has been since birth. He resides in New York City, New York, and Warwick, Orange County, New York. He is actively involved in the Metropolitan Council of Low Vision Individuals and an advocate for those with vision disability.

The TA is a public transportation operator of fixed route systems (bus and subway transportation), New York Public Authorities Law § 1200, et seq., and is subject to the ADA fixed route service requirements.

The TA's Department of Buses (the "DOB") operates 207 local and 36 express routes city wide, with 101 routes operating twenty-four hours a day, seven days a week, from 18 depots situated in all five boroughs of New York City.

Currently, there are approximately 9,500 BOs. Attrition and service expansion rates have been such that the TA hires approximately 1,000 new BOs annually. Of these approximately 700 become permanent employees.

Stewart takes twenty to thirty trips per month on TA public transportation, of which about two such trips per month are taken on TA buses. He is also registered for Access-A-Ride ("AAR"), the TA's ADA-required "paratransit" transportation system.

Stewart's use of TA transportation from TA's Metrocard business records for the period January 1, 2003, through June 30, 2004, established sixteen one-way bus trips during the entire eighteen-month period. Fifteen of Stewart's bus trips occurred in Manhattan; one occurred in Queens. During the same eighteen-month period, Stewart used the subway for a total of 531 one-way trips.

When Stewart boards a TA bus, he does not ask the BO to announce when Stewart has reached his destination, nor does he tell the BO his destination stop. Stewart also does not request that the BO announce stops intermittently while Stewart is on the bus.

After the effective date of the regulations, the DOB, in consultation with its BO's union, developed the lists of stops to be announced on all routes (over 200 routes). Thereafter, the DOB published a policy bulletin to all bus transportation personnel stating the obligation of BOs to make bus stop announcements as required by the regulation. From time to time, DOB has published reiterations of this policy.

All BOs have been trained in the obligation to announce bus stops, in their initial training upon commencement of employment (for BOs hired after the effective date of the regulation), and/or during annual refresher training or recertification training, which all BOs receive biennially. Training of BOs involves both classroom training, bus driving training, and in-service passenger service training.

Beginning in 1995, and periodically thereafter, DOB publishes the "Bus Operator's Guide to Customer Service," a booklet that is distributed to all BOs upon each edition's publication. Each such guide has reminded BOs that bus stop announcements are required to be made as well as the reason for the requirement and the benefit to customers.

Division-specific guides have been published by the Manhattan and Queens Divisions of the DOB, and the DOB also has published a Dispatcher's Guide. Dispatchers are the first-line supervisors of BOs.

The TA has produced and uses training videos for BOs on the subject of ADA compliance, including bus stop announcement requirements. The TA has created and posted six posters in depots and three posters on buses to advertise bus stop announcement requirements.

The DOB has provided each BO with the list of specific stops to be announced on the route to which the BO is assigned. These lists also are posted at the respective depots for each route.

In 1997, the DOB initiated an incentive program to reward BOs whose depot performance reached specified levels. The incentive program provided that the TA would give a cash gift for BOs to purchase an amenity of their choice, such as a pool table, television, or other similar amenity for the break rooms at the depots whose BOs met the goal for a month. Posters were created and posted at the depots to advertise the program and the program also was announced in the employee newsletter, The Leader. The DOB employee newsletter periodically has included articles about the bus stop announcement policy.

The DOB arranged for Stewart to speak at the TA's 126th Street Depot and Hudson Depot in Manhattan to discuss directly with BOs, managers, and union officials at those depots why bus stop announcements are important in assisting people with vision impairments when riding buses.

BO's performance on the bus is monitored by periodic, random observation rides (a/k/a "ride-checks"), as well as targeted rides "for cause," conducted by DOB personnel in the Safety and Training Division. One of the monitored performance requirements is that of BO compliance with the bus stop announcement policy.

In 2004, DOB began an expanded program of monitoring BO compliance with the bus stop announcement policy by entering into contracts with a transportation services company and with individual independent contractors (DOB dispatcher retirees) for these contractor personnel to ride TA buses undercover and to report on all instances of failure by BOs to make bus stop announcements. These contract monitors also are available to be witnesses at disciplinary hearings of BOs whom they report for failing to comply with bus stop announcement policy. This initiative, called the "ADA Announcement Compliance Ride Program," has enabled the DOB to increase its monitoring substantially, which results in more frequent discipline of BOs for non-compliance and in improved compliance.

From April 15, 2005 through June 10, 2005, 3,058 ride checks have been performed under the ADA Announcement Compliance Program, resulting in disciplinary charges being brought against 984 BOs, of which 831 were sustained or settled, with discipline imposed ranging from reinstruction to dismissal.

Since 1983, the TA's Operations Planning Division, an entity separate from the DOB, has conducted what is called the Passenger Environment Survey, or "PES." This survey is conducted using employees of Operations Planning to do ride-checks on buses and subway trains to monitor and report on customer service indicators. After enactment of the ADA and the DOB's implementation of the bus stop announcement policy, stop announcement compliance was added as a customer service indicator for the PES.

BO performance is measured according to whether the operator on a monitored route makes none, some, or all required announcements. The TA ride-check programs monitor BO performance whether or not there is a vision-impaired customer aboard.

The PES ride-checkers evaluate stop announcement compliance by recording the number of announcements that are made in a clear and understandable manner compared to the total number of announcements that should have been made on the routes selected for each periodic survey. For each period surveyed, ride-checkers make approximately 500 trips (one trip equals one entire bus route) encompassing approximately 7,000 required announcements. Routes emanating from all TA bus depots are included in each survey period.

Results of the PES survey are provided to the transportation depots for their use in directing their attention to those items which need improvement. These reports also are presented to the TA's Board and are available to the public who attend Board meetings. (The meetings are open, as required by the State's "Open Meetings Law," NY Public Officers Law §103).

For the most recent complete period, July 2004 to December 2004, the percentage of announcements that were made clearly and understandably was 52%. Non-final data for the first half of 2005 (data available through first-quarter) indicates a compliance rate of 55%.

PES ride-checkers find that most BOs make some announcements. In the fourth quarter of 2004, 14.86% of BOs were found to make no announcements, and 81.12% made some but not all announcements in a clear and understandable way. Routes are selected randomly and BOs are observed on the selected routes for the entire length of the route and without regard to whether there are disabled customers, specifically vision-impaired customers, on the route during the ride-check.

The DOB also uses the disciplinary process. Unlike with probationers, permanent BOs cannot be dismissed for deficient performance in one area one time. Through the collective bargaining agreements, a disciplinary process is in place which "starts small." This process, called "progressive discipline," can be a long, drawn-out process where performance deficiencies are intermittently identified between periods of no deficient performance evidence. The DOB also disciplined BOs based on observed failure to make stop announcements.

When observed by other than DOB ride-checkers, such as PES monitors or customers, the DOB would schedule a ride-check of an identified BO and bring disciplinary charges when the ride-checkers confirmed non-compliance and could testify at disciplinary hearings.

Data for 2003, compiled for this litigation at the request of Stewart, showed that 208 BOs had disciplinary charges brought against them for, at least in part, a failure to make stop announcements. Of these, 166 BOs had charges sustained against them, or they settled the charges. Discipline ranged from reinstructions, reprimand, warning, and final warning in 115 cases to suspensions in 50 cases and one dismissal. The remainder primarily were not yet concluded as of the date of the report (39), and there were a few miscellaneous dispositions.

In 2001, the Chief Transportation Officer began the process to award contracts to outside sources for additional ride-checkers.

Over the years, BOs and their unions have raised various objections or excuses for failure to comply with announcement requirements. Initially, the unions objected to the TA's list of specific stops to be announced on each route. The TA responded by negotiating route-by-route with union delegates until agreement was reached on the stops to be announced on all routes.

Next, BOs complained that it was unsafe to activate the sound amplification ("PS") system to make announcements while they were driving. The TA responded by gradually replacing all such systems with "hands-free" systems.

Next, systems were installed to allow the BO to record the stops in advance of his or her "pull-out" (start time of route), to overcome BO complaints about being unable to recall which stops were to be announced while dealing with traffic and customers. In fact, the BO's "paddle report," a route manifest that they take on board, lists all required announcements. These also are posted at each depot. Nevertheless, many BOs do not avail themselves of the opportunity to pre-record the announcements.

Due to the civil service system and collective bargaining agreements, the TA cannot fire employees or refuse to promote them based on inadequate performance in one aspect of a job with many responsibilities.

The incentive program failed to achieve its goal, in that only one depot in one month qualified for an award. Prior introductions of new technology to address BO complaints fail to result in significant improvement. Even attrition and the employment of new employees who have this job responsibility from their very first day on the job have failed to produce sufficiently better compliance.

The TA contract with First Transit, Inc. has a three-year term (February 2004 to February 2007). The contract will be renewed or the program will continue at the same level using in-house staff if BO compliance has not achieved at least 90% by the contract expiration date.

For several years, the TA has sought to purchase automated vehicle location ("AVL") systems that communicate via satellites to a bus command center which would enable the DOB to track the location of every bus at any given time. This type of system also would allow for automated bus stop announcements that can be kept outside of the control of the BO. Unfortunately, one prior pilot project/technology failed. The TA currently has a procurement underway to try again to install a system that works as intended in the New York City environment. If the AVL contract is completed on schedule, this capability will be available in the first depot (126th Street Manhattan Depot) by October 2006.

This initial installation at one depot will cost approximately $7.2 million. If it is successful, it will be rolled out gradually throughout the entire city. When rolled out citywide, the total cost of the project will be approximately $109 million. At this point, it is too early to give a firm date by which city-wide availability could occur.

The Summary Judgment Standard

Pursuant to Rule 56, summary judgment may be granted only if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986); SCS Communications, Inc. v. Herrick Co., Inc., 360 F.3d 329, 338 (2d Cir. 2004). The court will not try issues of fact on a motion for summary judgment, but rather, will determine "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986).

Summary judgment is appropriate where the moving party has shown that "little or no evidence may be found in support of the nonmoving party's case. When no rational jury could find in favor of the nonmoving party because the evidence to support its case is so slight, there is no genuine issue of material fact and a grant of summary judgment is proper." Gallo v. Prudential Residential Servs., Ltd. P'ship, 22 F.3d 1219, 1223-24 (2d Cir. 1994) (internal citations omitted). If, however, "'as to the issue on which summary judgment is sought, there is any evidence in the record from which a reasonable inference could be drawn in favor of the opposing party, summary judgment is improper.'" Security Ins. Co. of Hartford v. Old Dominion Freight Line, Inc., 391 F.3d 77, 83 (2d Cir. 2004) (quoting Gummo v. Village of Depew, 75 F.3d 98, 107 (2d Cir. 1996)).

The moving party has the burden of showing that there are no material facts in dispute, and the court must resolve all ambiguities and draw all reasonable inferences in favor of the party opposing the motion. Bickhardt v. Ratner, 871 F. Supp. 613 (S.D.N.Y. 1994) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986)). Thus, "summary judgment may be granted if, upon reviewing the evidence in the light most favorable to the non-movant, the court determines that there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law." Richardson v. Selsky, 5 F.3d 616, 621 (2d Cir. 1993).

A material fact is one that would "affect the outcome of the suit under the governing law," and a dispute about a genuine issue of material fact occurs if the evidence is such that "a reasonable jury could return a verdict for the nonmoving party." Anderson, 477 U.S. at 248; R.B. Ventures, Ltd. v. Shane, 112 F.3d 54, 57 (2d Cir. 1997).

The Applicable Law And Regulations

The Americans with Disabilities Act of 1990, 42 U.S.C. § 12101, et seq., includes Title II.B, 42 U.S.C. § 12141, et seq., which, in general, mandates "accessible" public transportation for people with disabilities. The statute also directs the United States Department of Transportation (the "USDOT") to promulgate regulations to implement Title II.B (e.g., to define "accessible transportation"). See 42 U.S.C. § 12164. In 1991, the USDOT promulgated 49 C.F.R. Part 37, "Transportation Services for Individuals with Disabilities (ADA)," to comply with the ADA mandate. Part 37 is enforced by the Federal Transit Administration ("FTA"), a USDOT agency which regulates and funds public transit generally. See Federal Transit Act, 49 U.S.C. § 5301, et seq.

The ADA statute is silent as to bus stop announcements; however, the USDOT's ADA regulations at 49 C.F.R. Part 37 contain the following requirement:

(1) The entity shall announce at least at transfer points with other fixed routes, other major intersections and destination points, and intervals along a route sufficient to permit individuals with visual impairments or other disabilities to be oriented to their location.

(2) The entity shall announce any stop request of an individual with a disability.

Although, the announcement regulation speaks in mandatory language ("the entity shall announce stops as follows . . ."), 49 C.F.R. 37.167(b), federal agency guidance in this regard states that the responsibility can be carried out by vehicle operators or by automated announcements. 49 C.F.R. Part 37 App. D., at 567 (2004 ed.).

With respect to employees of transportation providers, Title II of the ADA and USDOT regulations have no provision that imposes legal culpability on employees. Only transit "entities" can be defendants in ADA Title II cases because that subchapter of the statute only discusses the obligations of "entities" to not discriminate, 42 U.S.C. § 12131 and § 12132, not those of "employers" or "persons," as is commonly found in other discrimination statutes, including the employment section (Title I) of the ADA. See 42 U.S.C. § 12111(5) (Title I definition of "Employer") and § 12111(7) (Title I definition of "Person").

The USDOT's only regulation with regard to a transit entity's obligations regarding its employees relates to the training they are to provide to those who carry out ADA requirements. The relevant regulation states, in relevant part:

[49 C.F.R.] § 37.173 Training requirements: Each public or private entity which operates a fixed route or demand responsive system shall ensure that personnel are trained to proficiency, as appropriate to their duties, so that they operate vehicles and equipment safely and properly assist and treat individuals with disabilities who use the service in a respectful and courteous way, with appropriate attention to the difference among individuals with disabilities.

These regulations were adopted September 6, 1991, and became effective October 7, 1991. See 56 Fed. Reg. 45583, 45585.

In the guidance that accompanies the training regulation, the USDOT makes the following points:

A well-trained workforce is essential ... [W]e believe that training should be conducted in an efficient and effective manner, with appropriate flexibility allowed to the organizations that must carry it out. Each transportation provider is to design a training program which suits the needs of its particular operation ...

[T]raining must be to proficiency ... However every employee of a transportation provider who is involved with service to persons with disabilities must have been trained so that he or she knows what needs to be done to provide the service in the right way ...

While there is no specific requirement for recurrent or refresher training, there is an obligation to ensure that, at any given time, employees are trained to proficiency. An employee who has forgotten what he was told in past training sessions, so that he or she does not know what needs to be done to service individuals with disabilities, does not meet the standard of being trained to proficiency ...

[T]raining must be appropriate to the duties of each employee ...

One of the best sources of information on how best to train personnel to interact appropriately with individuals with disabilities in the disability community itself. Consequently, the Department urges entities to consult with disability organizations concerning how to train their personnel ...

49 C.F.R. Part 37, App. D., "Section 37.173 Training."

The Three-Year Statute Of Limitations Applies

The ADA provides that remedies for violations are the same as for those under the Federal Rehabilitation Act of 1973, 29 U.S.C. § 794a(a)(2). The Federal Rehabilitation Act, in turn, states that remedies for violations are the same as for Title VI of the Civil Rights Act ("CRA") of 1964, 42 U.S.C. § 2000d. See ADA, 42 U.S.C. § 12133. Barnes v. Gorman, 536 U.S. 181, 184-85 (2002) (holding that punitive damages are not available under Title II of ADA); Garcia v. S.U.N.Y. Health Sciences Center, 280 F.3d 98, 110-11 (2d Cir. 2001) (addressing the limits on suits against the state).

Because the ADA does not include a statute of limitations for Title II claims, federal courts generally borrow the statute of limitations for personal injury actions in the state where the action arises. Goodman v. Lukens Steel Co., 482 U.S. 656, 660 (1987); Okure v. Owens, 816 F.2d 45, 49 (2d Cir. 1987), aff'd, 488 U.S. 235 (1989). New York C.P.L.R. § 214(5) provides for a three-year statute of limitations for personal injury claims, and has been adopted by the Second Circuit for federal actions arising under 42 U.S.C. §§ 1981 and 1983, as well as under CRA Title VI, see Curto v. Edmundson, 392 F.3d 502, 504 (2d Cir. 2004) (adopting the same period for Title IX claims). Since the remedy provisions of CRA Title VI provide the remedies for ADA Title II violations, the same three-year statute of limitations applied to Title VI claims shall apply to ADA Title II actions arising in New York.

Stewart commenced this action in January 2004. At his deposition, he was unable to provide any estimate of the number of times BOs have failed to announce stops, except for instances that he memorialized in letters of complaint to the TA, which he appended to his complaint in this action. There are five such letters, but three were sent in 1993 and 1994, and then two in 2003, just prior to filing this lawsuit. Therefore, within the three-year statute of limitations, Stewart can only document two failures on one round-trip on or about September 28, 2003, on one leg of a round-trip that occurred on October 3, 2003, and on a oneway trip on October 3, 2003. At his deposition in June 2004, he testified that on the most recent bus trip prior to the date of deposition, the BO made the required announcements.

Stewart seeks injunctive relief and damages for bus stop announcement failures alleged to have occurred since enactment of ADA. However, the only justiciable claims are those resulting from acts within the three-year statute of limitations period.

The Damage Claim Is Dismissed

In order to establish a violation of Title II of the ADA, a plaintiff must show that: (1) he was a qualified individual with a disability; (2) he was excluded in participation in or denied the benefits of a public entity's services, programs, or activities by the public entity or was subjected to discrimination by the public entity; and (3) such denial or discrimination was due to the plaintiffs disability. See 42 U.S.C. § 12132. An individual who proves a violation of the ADA may seek enforcement through injunctive relief or damages. In order to obtain compensatory damages for a Title II violation, a plaintiff must demonstrate intentional discrimination on the part of the government agency involved. See Midgett v. Tri-County Metropolitan Transportation District (a/k/a Tri-Met), 254 F.3d 846 (9th Cir. 2001) (plaintiff alleged discrimination due to failure of bus wheelchair lifts to work consistently); Ferguson v. City of Phoenix, 157 F.3d 668, 674 (9th Cir. 1998); Wood v. President & Trustees of Spring Hill College, 978 F.2d 1214, 1219-20 (11th Cir. 1992); Douris v. Bucks County, No. 03 Civ. 5661 (RBS), 2004 U.S. Dist. LEXIS 12769, at *15 (E.D.Pa. July 6, 2004), aff'd in unpub. op., 2005 U.S. App. LEXIS 17269 (3d Cir. Aug. 16, 2005) (involving an altercation between a public bus driver and two deaf passengers). However, equitable remedies for violations of the ADA are available regardless of a defendant's intent. Midgett, 254 F.3d at 851; Ferguson, 157 F.3d at 674-75.

The Court of Appeals for the Second Circuit has held that in order to demonstrate intentional discrimination under Title II, a plaintiff must show not only a violation, but also that it was motivated by either discriminatory animus or by ill will stemming from a plaintiff's disability. See Garcia, 280 F.3d at 112. Here, there is no evidence of discriminatory animus or ill will by the TA or by the DOB. In fact, Stewart has not even alleged discriminatory intent, but rather has only alleged a violation. Accordingly, the record here does not establish intentional discrimination, and Stewart and the Metropolitan Council of Low Vision Individuals are not entitled to compensatory damages.

An Issue Remains Relating To Injunctive Relief

In order to demonstrate entitlement to injunctive relief, Stewart must show that there is an immediate threat of repeated injury. City of Los Angeles v. Lyons, 461 U.S. 95, 102 (1983).

While it is not necessary to prove intentional discrimination to obtain injunctive relief, federal courts must exercise restraint in enjoining non-federal agencies, whether state or local. See Midgett, 254 F.3d at 851 (citing Rizzo v. Goode, 423 U.S. 362, 380 (1976)). Because Plaintiff here seeks to enjoin a non-federal agency, he must overcome the "well-established rule" that "bars federal courts from interfering with non-federal government operations in the absence of facts showing an immediate threat of substantial injury." Midgett, 254 F.3d at 850 (citing Hodgers-Durgin v. De La Vina, 199 F.3d 1037, 1042-43 (9th Cir. 1999)).

In the one reported instance where an injunction, but only a preliminary injunction, was issued for bus stop announcement failures, the district court determined that the principal reason for bus operator non-compliance was the transit agency's failure to provide adequate training. Martin v. Metropolitan Atlanta Rapid Transit Authority (a/k/a MARTA), 225 F. Supp. 2d 1362, 1378-80 (N.D. Ga. 2002). Specifically, the Court noted that only training at time of initial hire had occurred and that no bus operator had been disciplined for non-compliance. Id.

However, in Tandy, et al. v. City of Wichita, 380 F.3d 1277 (10th Cir. 2004), which involved allegations by multiple plaintiffs of multiple ADA Title II.B violations, including bus stop announcements, the Court of Appeals held that plaintiffs were not entitled to permanent injunctive relief because the evidence of bus operators not making announcements was insufficient, in light of evidence that the city required its bus operators to do so and had trained them to do so. Citing City of Los Angeles v. Lyons, 461 U.S. 95, 102-06, the Tandy Court held that the plaintiff would have to show that the city had ordered or authorized bus operators to not make bus stop announcements or that bus operators never made stop announcements. Tandy, 380 F.3d at 1288.*fn1

In Tandy, the Court did permit the plaintiff to go forward to attempt to prove that Wichita Transit, "as the 'entity' in question" had not complied with the bus stop announcement requirements, because on the pending motion, the City had only demonstrated that it had a policy in place, which the court deemed to be insufficient. Id. at 1290.

Similarly, in Midgett v. Tri-Met, the Court of Appeals held that plaintiff, alleging inoperable wheelchair lifts, could not pursue injunctive relief because there was no proof that the relevant standard was violated. The "entity" in the Midgett case was required by ADA Title II.B. regulations to have working bus lifts (just as in this case the entity is required to make bus stop announcements). In Midgett, an ADA regulation required that lifts had to be repaired within a specified time period. Midgett, 254 F.3d at 849-50 (analogously, in the instant case, the entity is required to train its employees to proficiency in making bus stop announcements). The Court of Appeals in Midgett upheld the lower court's denial of injunctive relief because the defendant had procedures in place for monitoring wheelchair-lift performance in order to take action. Id. 3d at 850.

As in Midgett, Defendant here has presented extensive evidence demonstrating the specific programs it has in place to address ADA issues. However, on the record established, a question of fact has been presented, namely, has the TA met the mandate of 49 C.F.R. § 37.173 to "ensure that personnel are trained to proficiency, as appropriate to their duties." In spite of the evidence adduced by the Defendant, the rates of compliance of 52% and 55% raise this issue.

The TA has cited the civil service protections and collective bargaining agreements as impediments to disciplinary actions and performance improvements. However, these matters were not presented upon this motion.

In order to resolve this issue in relation to injunctive relief, a hearing will be held at a date convenient to the parties subsequent to March 6, 2006.

Conclusion

For the reasons set forth above, the claim for damages is dismissed. A further hearing will be held on the availability of injunctive relief.

It is so ordered.

ROBERT W. SWEET U.S.D.J.

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